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Reasonable Expectation of Privacy


Robert Smith was a passenger in a car heading northbound on I-95 when the car was pulled over by a police officer. The officer decided to pursue the car after he observed the car swerve erratically while the driver was doing "something" to his face. The driver told the officer that the car had swerved while he was splashing water on his face. The officer issued the driver a warning for failure to drive within a single lane and recommended that the driver drink some coffee or pull over and take a nap. Smith was asleep in the front passenger seat during this exchange.

Although the officer informed the driver that he was free to leave, the driver consented to the officer's request to search the car. For safety purposes, the officer requested the driver and Smith to sit in the back seat of the police car during the search of the car. The officer found cocaine in the glove compartment and arrested Smith and the driver. While the search was taking place, the officer taped the conversation between Smith and the driver using a tape recorder in the police car. Smith and the driver were not told that they would be recorded. The taped conversation included a discussion concerning whether the officer had found the package in the car.

Article I, section 12 of the Florida Constitution provides: "The right of the people to be secure ... against the unreasonable interception of private communications by any means, shall not be violated .... This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." FLA. CONST . art I, 12.


Issues: Would society conclude that the expectation of privacy, under the facts presented, was reasonable? Should a person, who is neither under arrest nor under an articulable suspicion, but who has been asked to sit in the rear of a police vehicle for safety and comfort reasons, reasonably expect that conversations within that vehicle will be private and inadmissible as evidence? See State of Florida v. Smith 641 So.2d. 849


Andrea Weiss
Emory Law School

ANSWERS

The Supreme Court, Harding, J., held that: (1) motorist asked to sit in rear of police vehicle for safety and comfort reasons during consensual search of automobile had no reasonable expectation of privacy in statements which were recorded, and (2) statute making it a crime to willfully intercept oral communications did not apply given that motorist lacked expectation of privacy in police car.
Question answered and decision quashed.
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